Massachusetts Condo Smoking Laws

What do you do when your neighbor smokes in the condo? Can condo associations prohibit smoking on the property? What sort of restrictions can homeowners associations (HOAs) impose on smokers? Condo unit owners, landowners, property managers, and HOAs are typically closely connected by governmental regulations and contractual stipulations. These laws regulate their relationship, allowing an aggrieved party to seek legal action against a party who breaches the law.  It is, therefore, vital to carefully review all smoking policies to enable you to enforce them without challenges.

Can Condo Associations Ban Smoking?

Yes, condo associations can ban smoking depending on state laws and the HOA policy or guidelines. State and local governments have for years implemented laws, regulations, and ordinances to restrict smoking in public places such as restaurants and parks. Some of these laws may apply to common condominium areas, including sidewalks and recreational areas. 

For example, Massachusetts’ ban on smoking at workplaces and other shared spaces may apply to staffed HOA offices. It may also extend to other areas, including hallways, coffee shops, food courts, restaurants, taverns, and bars. Smoking in private spaces is usually permitted, although local ordinances prohibiting smoking in multi-unit residential buildings are growing popular. 

Typically, HOAs rely on governing documents and covenants to limit or prohibit smoking within or around their properties. Such arrangements are legally binding, allowing homeowners or their association, as the case may be, to sue for contract breaches. However, the agreement may only bind the parties when it meets all the conditions of a valid contract. It’s important to remember that smoking, especially tobacco, is legal for the most part. So, agreements prohibiting or restricting the act must be done with careful consideration.

What Are Common Condo Smoking Rules?

Homeowners mostly ban smoking in common interior areas such as hallways, lobbies, and garages but allow smoking within individual units and exterior areas. However, as earlier indicated, banning smoking inside the units is becoming common. One reason is to prevent secondhand smoke exposure, which can pose health risks to innocent bystanders.

What If You Are Affected by Cigarette Smoke From a Neighbor’s Condo?

When an individual smokes in or around a condo, it can lead to secondhand smoke exposure. Such exposure can cause serious health problems. Studies suggest that 44 to 53 percent of residents in multi-unit housing that prohibit smoking in their home experience secondhand smoke infiltration from elsewhere in or around the building. 

Smoking in condos can lead to civil and criminal liability, with mixed results. Courts have ruled both for and against nonsmokers in individual cases. While smokers are the primary law breakers in such situations, property owners and managers may also be drawn into the suits. 

Property owners, managers, and HOAs may also initiate actions if they have valid legal claims. 

Legal Steps to Resolve Condo Smoking Issues

There are legal avenues for dealing with condo smoking issues. Here are some examples:

1. Amending Covenants or Enacting New Rules

Rather than waiting for the federal, state, and local institutions to enact legislation, homeowners can tailor their declaration of covenants to restrict smoking for incoming members. Thus, when new members purchase homes in a community with an HOA, they accept all the terms and conditions, including those related to smoking.

Like other contracts, courts generally presume HOA covenants to be enforceable to the extent that they comply with federal and state laws or, unless challenged to be arbitrary, burdensome, or violate fundamental public policy. It’s best to ensure that any subsequent amendment to the covenant complies with its terms, whether express or implied.

Since prescribing the details in the covenant can be cumbersome, the drafter may empower the association through the contract to prepare policies that regulate smoking and other activities on the premises. It may also allow reasonable alterations and modifications to the guidelines with time. This typically involves approval by member votes and recording the amended declaration in the county land records. The covenant usually determines the percentage of votes required to make amendments. For example, it can require a simple majority, super-majority or unanimous vote.

The enforcement procedures may vary depending on the association’s rules, but they usually commence with a warning letter, which may escalate to a fine. Breaches may also lead to lawsuits.

2. Taking Legal Actions

Secondhand smoke lawsuits involving nuisance in the condos and breach of covenants are common. As earlier indicated, individuals and HOA boards may have legal claims, depending on the facts of each case. The facts may also determine whether they should bring the claim individually, through the association, or by a class action lawsuit. The members may also sue the board when they fail to enforce the covenant or breach any part of the policy.

Sometimes, HOA policies contain “fee-shifting” provisions, requiring the losing party to pay the winning party’s legal feeds. This is separate from the orders the court may give for compensation or damages.

Homeowners and HOA boards may also turn to common law theories, primarily if the covenant or policy does not adequately address the situation. Common law claims are based on established precedents passed down to courts over the years. For nuisance claims, the plaintiff may succeed if they can prove that the smell of smoke in the condo interferes with the use or enjoyment of the property.

There are different types of damages that aggrieved parties seek in court, including the following:

• Compensatory damages: This is the most common remedy for wrongdoing in a civil action. The primary purpose is to compensate the plaintiff for the injury, damage, or other losses. Thus, when the plaintiffs suffer any health complication linked to smoking, they may claim for the medical expenses.
• Nominal damages: These are awarded to signify that the defendant did some legal wrong. Nominal damages are usually low and awarded when the breach is not substantial. 
• Punitive damages: Punitive damages are awarded to penalize the wrongdoer and deter them from repeating what they have done. Usually, the courts grant such compensations when the defendant acts willfully and maliciously.
• Liquidated damages: These damages are usually ascertainable from the contracts. For example, the aggrieved party may claim liquidated damages when the agreement states a particular amount of money for a breach. 

An aggrieved party may also seek an injunction against the defendant to prevent them from continuing with their activities or reverse a situation caused by the smoking. Such orders are usually granted when damages alone may not solve the problem.

Besides commencing legal action in court, the parties may resort to voluntary alternate dispute resolution procedures such as mediation and arbitration. The HOA covenant may include that as a precondition before commencing litigation. In this case, the parties may not bypass the contractual requirements except in limited circumstances.

Contact Calabrese Law Associates for Condo Law Advice

The professionals at Calabrese Law Associates have years of practical experience assisting property owners, managers, and HOA associations in tackling their legal challenges. We can help you draft covenants and policies to regulate the smoking situation in your condo and provide tailored advice where necessary. Contact us now if you have any condo-related issues or disputes that you need to resolve.

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This publication and its contents are not to be construed as legal advice nor a recommendation to you as to how to proceed. Please consult with a local licensed attorney directly before taking any action that could have legal consequences. This publication and its content do not create an attorney-client relationship and are being provided for general informational purposes only.